Reopening an asylum claim remains legally possible even when a file has been closed due to abandonment, withdrawal, or an unfavourable decision, provided that a breach of natural justice can be demonstrated.
Whether you missed your hearing, were inadequately represented by previous counsel, or withdrew your claim under pressure, understanding the exact conditions of this procedure can make the difference between a reactivated file and a forced removal.
For a personalized analysis of your situation, the guidance of a refugee law lawyer is strongly recommended.
Key Takeaways
- Reopening an asylum claim is governed by section 62 of the Refugee Protection Division Rules, SOR/2012-256, and may only be granted by the Refugee Protection Division (RPD) where a breach of the principles of natural justice is established.
- The application may be filed provided that neither the Refugee Appeal Division nor the Federal Court has issued a final decision on the file, but it must be submitted as soon as possible, with a valid justification for any delay.
- Recognized grounds include, among others, the absence of valid notice, inadequate representation by previous counsel, or a medical situation preventing appearance.
- Reopening is distinct from an appeal to the Refugee Appeal Division (RAD) and from judicial review before the Federal Court.
- A declared abandonment of an asylum claim constitutes a ground of ineligibility for any future asylum claim.
What Is the Reopening of an Asylum Claim?
The reopening of an asylum claim is an exceptional procedure that allows the RPD to reopen a file that has already been closed, where the closure resulted from a breach of the fundamental principles of a fair process. It is neither an appeal nor a new filing: it is an internal correction mechanism within the tribunal, designed to preserve the integrity of administrative justice.
Regulatory Basis: Section 62 of the Refugee Protection Division Rules, SOR/2012-256
Section 62 of the Refugee Protection Division Rules, SOR/2012-256 provides that a person whose asylum claim has been the subject of a decision or a declaration of abandonment may apply to the RPD to reopen it, as long as the Federal Court has not rendered a final decision.
The substantive test is strict: the Division may allow the application only where a breach of a principle of natural justice is established, or where it is otherwise in the interest of justice to do so.
Distinction Between Reopening, Reinstatement, and Appeal
Three remedies are frequently confused:
- Reopening: addressed to the RPD, applies to a file closed by decision or abandonment, based on a breach of natural justice.
- Reinstatement: also addressed to the RPD, but concerns specifically withdrawn claims.
- Appeal to the RAD: addressed to the Refugee Appeal Division, applies to a decision on the merits rendered by the RPD, with a 15-day deadline for the notice of appeal and 45 days to submit the appeal record.
Who May File a Reopening Application
A person whose asylum claim has been the subject of a final decision by the Refugee Protection Division may, in certain circumstances, apply to have their file reopened. This is, however, an exceptional remedy, reserved for situations where a breach of the principles of natural justice has compromised the fairness of the proceedings. Representation by a lawyer is not mandatory, but it is strongly recommended given the technical nature of the applicable criteria and the relevant case law.
In What Situations Can an Asylum Claim Be Reopened?
Several concrete situations open the door to a reopening application. The cases most frequently argued before the RPD involve a failure to appear, deficient prior representation, or a decision rendered without a fair hearing.
Following an Abandonment for Failure to Appear
Abandonment is declared when the claimant fails to appear at their hearing or at an abandonment hearing, or fails to submit their Basis of Claim (BOC) form within the required time. If the absence results from a cause beyond the claimant's control (such as documented medical emergency, hospitalization, a notice problem, force majeure), the RPD may find a breach of procedural fairness.
Following Inadequate Representation by Previous Counsel
When a reopening application is based on allegations of incompetence or negligence on the part of former counsel that compromised the right to a fair hearing, a specific procedure applies. In particular, the claimant must provide a copy of the application to their former counsel and inform the Refugee Protection Division, so that the former counsel may respond to the allegations made against them.
It is important, however, to distinguish genuine inadequate representation from mere dissatisfaction with the outcome obtained. The fact that an asylum claim was refused does not necessarily mean that the representative made an error. Each situation must be assessed based on the specific circumstances of the file and the representative's professional obligations.
This is why it is strongly recommended to obtain legal advice before raising this type of ground in a reopening application.
Other Grounds Related to a Breach of Natural Justice
Under subsection 162(2) of the Immigration and Refugee Protection Act (IRPA), each division of the Immigration and Refugee Board (IRB) must operate in accordance with fairness and natural justice. Two fundamental components of natural justice are the right to be heard and the right to know the evidence and the elements on which the decision is based, in order to be able to respond to them. Where a significant breach of one of these principles compromises the fairness of the proceedings, it may justify a reopening application. Examples include deficient interpretation during the hearing, the absence of valid notice, or an error in the communication of documents relevant to the file.
When to Pursue Reopening
Reopening is the appropriate remedy when an asylum claim has been closed by a decision of the Refugee Protection Division in circumstances where a breach of procedural fairness or the principles of natural justice may have affected the process. It may be considered, in particular, when abandonment has been declared by the Division, or when a claimant was unable to adequately present their file due to a significant procedural issue.
Reopening nevertheless remains an exceptional remedy. It is not a means of simply contesting an unfavourable decision or of resubmitting evidence that could have been presented at the original hearing.
When to Pursue an Appeal to the RAD
When an unfavourable decision of the Refugee Protection Division may be appealed, the Refugee Appeal Division is generally the appropriate remedy. It notably allows certain errors of law, fact, or mixed fact and law made by the RPD to be challenged, as well as the presentation of new evidence in certain circumstances.
The time limit for initiating an appeal is very short. The claimant must generally file their notice of appeal within 15 days of receiving the RPD's written decision and must comply with the applicable deadlines for perfecting the appeal record.
When to Seek Judicial Review
Judicial review before the Federal Court may be considered when a decision of the Refugee Protection Division or the Refugee Appeal Division is being challenged and no other appropriate remedy is available. It notably addresses errors of law, unreasonable decisions, or breaches of procedural fairness.
Unlike an appeal, the Federal Court generally does not conduct a new assessment of the evidence. Rather, it examines whether the contested decision was rendered in accordance with the applicable law and the requirements of procedural fairness.
Procedure for Filing a Reopening Application
A reopening application must be carefully prepared and must clearly set out the grounds justifying the reopening of the file. The claimant must explain the circumstances that led to the closure of the asylum claim and demonstrate how a breach of the principles of natural justice or a significant procedural issue affected the fairness of the process.
The reopening application must be accompanied by relevant supporting documentation. A clear presentation of the facts and grounds relied upon is essential.
Time Limit for Filing the Application
A reopening application must be filed within a reasonable time after the claimant becomes aware of the elements justifying it. Although no specific deadline is generally prescribed, the Refugee Protection Division may take into account the timing of the filing and any explanations provided if a significant delay has occurred.
A person who believes they have grounds that may justify reopening should therefore obtain legal advice promptly, to avoid delay negatively affecting the assessment of their application.
Special Case of Inadequate Representation
When a reopening application is based on the conduct of former counsel, the claimant must generally provide them with a copy of the application, to allow them to respond to the allegations made against them. This step is intended to ensure fairness for all parties involved.
Demonstrating inadequate representation, however, requires more than mere dissatisfaction with the outcome obtained. It must be shown that the representative's acts or omissions had a significant impact on the claimant's ability to adequately present their file.
How the RPD Decides
The Refugee Protection Division analyzes each reopening application based on the specific circumstances of the file. It assesses, among other things, whether the conditions justifying reopening are met and whether a breach of the principles of natural justice has compromised the fairness of the proceedings.
What Happens to the Removal Order While the Application Is Being Reviewed?
Filing a reopening application has no automatic suspensive effect on a removal order in progress. This procedural reality is often the most dangerous blind spot for those affected.
A removal order can become enforceable independently of the ongoing review of your reopening application. In practical terms, the Canada Border Services Agency (CBSA) retains the authority to proceed with removal until a formal stay has been obtained through the Federal Court.
Why Seek the Assistance of a Lawyer
The natural justice test applicable to reopening applications is complex and requires an in-depth analysis of the specific circumstances of each file. It is not enough to demonstrate dissatisfaction with the outcome obtained: the claimant must establish that a significant procedural issue compromised the fairness of the process.
The consequences of the final closure of an asylum claim can be significant. It is therefore essential to act quickly when a person believes their claim was closed under circumstances that could justify reopening.
The assistance of a lawyer who is a member of the Barreau du Québec allows, among other things:
- assessing the chances of success of a reopening application and the relevance of this remedy given the situation;
- preparing a well-structured file that meets the requirements of the Refugee Protection Division;
- analyzing the specific issues related to an allegation of inadequate representation by former counsel;
- coordinating strategy with other remedies or steps that may be necessary, particularly when a removal order is in progress;
- ensuring that the steps taken comply with the applicable professional and ethical obligations.
Fees vary depending on the complexity of the file, the volume of documents to be reviewed, the evidence to be prepared, and any related steps that may be necessary. An initial consultation allows the situation to be assessed and the appropriate approach to be determined.
Reopening an asylum claim remains an exceptional remedy, but it can be an important avenue when a proceeding has been compromised by a procedural fairness issue. Its success depends on a clear demonstration of the facts, rigorous preparation of the file, and a strategic analysis of the available remedies.
The Importance of Responding to IRB Communications
In certain situations, the Refugee Protection Division may send a communication to asylum claimants who are not represented by a lawyer, in order to confirm their intention to continue their claim for protection before scheduling a hearing.
This step is intended, in particular, to avoid scheduling hearings in files where the claimant no longer wishes to pursue their asylum claim or is no longer actively participating in the process.
It is therefore essential for unrepresented asylum claimants to keep their contact information up to date with the Immigration and Refugee Board of Canada, particularly their mailing address, to ensure they receive important communications regarding their file.
Many claimants have had their file closed, or their claim deemed abandoned, after failing to respond to a communication from the Board within the required time. In certain situations, a reopening application may then become necessary in an attempt to reactivate the file.
If you find that your asylum claim has been closed or declared abandoned, it is important to consult a lawyer without delay to assess the possible remedies.
Frequently Asked Questions About Reopening an Asylum Claim
How Long Does a Reopening Application Take at the RPD?
No legal deadline is imposed on the RPD to render a decision. Given the current backlog, processing times vary considerably from one file to another.
Can I Remain in Canada While My Reopening Application Is Under Review?
Filing a reopening application has no automatic suspensive effect on a removal order. An administrative or judicial stay must be sought in parallel to prevent removal while the application is under review.
What Happens If My Reopening Application Is Refused?
A decision refusing a reopening application may, in certain circumstances, be the subject of an application for leave and judicial review before the Federal Court. This remedy must, however, be pursued quickly, as strict deadlines apply.
The Federal Court generally does not re-examine the entire file as an appellate body would. Rather, it examines whether the decision of the Refugee Protection Division was rendered in accordance with the applicable law and the principles of procedural fairness.
When a reopening application is refused, it is important to obtain legal advice promptly in order to assess the remedies available based on the specific circumstances of the file.
Can I File Multiple Successive Reopening Applications?
If a previous application was refused, the RPD takes into account the grounds for refusal and may only allow a subsequent application in exceptional circumstances based on the existence of new evidence that could not have been provided before.
This article is provided for informational purposes only and does not constitute legal advice. Each file has specific characteristics that require individual assessment. For an analysis of your situation, please consult a lawyer who is a member of the Barreau du Québec.
